In Re D.R., Ca2006-12-310 (5-12-2008)
{¶ 2} On April 23, 1997, Butler County Children Services Board filed a complaint in the juvenile court alleging that appellant's child, D.R., is an abused and neglected child. At that time, D.R. was placed in the custody of her paternal aunt, Wanda Marcum. However, on July 7, 2000, appellees, Kathryn and Thomas Phillips, who are residents of Indiana, filed a *2 complaint seeking custody of D.R. On August 15, 2000, the juvenile court awarded custody of D.R. to appellees, after Marcum сonsented to appellees' change of custody request.
{¶ 3} On October 26, 2005, appellant filed a motion seeking custody of D.R. On December 8, 2005, pursuant to a petition appellees filed in the Circuit Court of Decatur County Indiana, the Indiana court "assume[d] jurisdiction over all issues relating to thе custody, support and visitation of [D.R.], pursuant to [Indiana Code] 31-17-3-1, etc. seq." Subsequently, on January 10, 2006, appellees moved to dismiss appellant's cоmplaint in the juvenile court, arguing that the Indiana court has jurisdiction over custody matters concerning D.R.
{¶ 4} On October 9, 2006, a juvenile court magistrate held а hearing on appellees' motion to dismiss. Appellees were present for this hearing, but neither appellant, nor his counsel made an аppearance. Following the hearing, the magistrate granted appellees' motion to dismiss, finding that the juvenile court lacks jurisdiction to rule оn appellant's motion, pursuant to the Indiana court's decision assuming jurisdiction over D.R.'s custody. Appellant objected to the magistrate's deсision, and the juvenile court overruled the objections and adopted the magistrate's decision. Appellant appeals the trial cоurt's decision, raising four assignments of error. For the purpose of clarity, we discuss some of appellant's assignments of error together.
{¶ 5} Assignment of Error No. 1:
{¶ 6} "IT IS ERROR FOR A MAGISTRATE IN JUVENILE COURT TO RULE ON MOTIONS WHEN THE NOTICE STATES `THE MATTER IS SET FOR REVIEW.'"
{¶ 7} Assignment of Error No. 4:
{¶ 8} "IT IS ERROR FOR THE TRIAL COURT TO NOT GRANT JOHN R.['S] OBJECTION TO THE DISMISSAL OF THE ACTION."
{¶ 9} In his first assignment оf error, appellant argues that the magistrate abused his *3
discretion in ruling on appellees' motion to dismiss after notice had been provided to the parties that the event on October 9, 2006 was to be a review hearing. Appellant maintains the juvenile court violated
{¶ 10}
{¶ 11} The record indicates that the notice provided to appellant regarding the October 9, 2006 hearing was that it was to be a review hearing. Further, the notice stated, "[p]arties in this case shall appear in Court at said date and time. Failure of any party to appear may result in the issuance of a warrant for the party's arrest." Thе notice did not indicate that the case could potentially be dismissed as a result of this hearing. However, we find that appellant was affordеd proper notification as to the potential for the case to be dismissed, as appellant had notice of the Indiana court's dеcision assuming jurisdiction over matters concerning D.R.'s custody, and had notice of appellees' subsequent motion to dismiss this case pursuant to the Indiаna court's decision. See Garnett v. Nationwide Property Ins., Cuyahoga App. No. 88500,
{¶ 12} Moreover, while the magistrate found in his decision that appellant failed to appear after having had nоtice by prior court entry and "denied" appellant's motion for custody, the magistrate did not dismiss the case for failure to prosecute pursuant to *4
{¶ 13} Nevertheless, as discussed above, appellant had adequate notice of appellees' pending motion to dismiss the case for lack of jurisdiction. Appellant simply failed to provide evidence to refute appellees' motion to dismiss for lack of jurisdiction.
{¶ 14} Accordingly, appellant's first and fourth assignments of error are overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} "THE COURT COMMITTED ERROR WHEN IT OVERRULED JOHN R.['S] OBJECTION WHEN THE MAGISTRATE'S REPORT WAS FACIALLY DEFECTIVE AND THE DECISION WAS CONTRARY TO LAW."
{¶ 17} Assignment of Error No. 3:
{¶ 18} "IT IS ERROR FOR A TRIAL COURT TO FAIL TO FOLLOW O.R.C. SEC.
{¶ 19} In his second and third assignments of error, appellant argues that the magistratе's decision is deficient because there are no specific findings of fact to support the magistrate's conclusion that the juvenile court does not have jurisdiction to rule on appellant's motion for custody of D. R., and that the magistrate failed to consider the statutory factors of R.C.
{¶ 20} Initially, we note that in his objections to the magistrate's decision, appellant failed to raise any of these arguments asserted in support оf his second and third assignments of error.
{¶ 21} Moreover, according to the record, appellant failed to timely request findings of fact and conclusions of law, pursuant to
{¶ 22} The record indicates that D. R. has been in the legal custody of appellees since August 16, 2000, pursuant to the juvenile court's order filed on that date. Further, on December 8, 2005 the Indiana court assumed jurisdiction over issues relating to the custody, support, and visitation of D.R. The juvenile court found that based on the Indiana court's assumption of jurisdiction, аnd based on the Uniform Child Custody Jurisdiction and Enforcement Act, the juvenile court lacked jurisdiction to rule on appellant's motion for custody. Becаuse appellant failed to request findings of fact and conclusions of law, we presume the magistrate properly considered all required statutory factors and all other relevant facts. Further, appellant has provided no evidence that the magistrate failed to properly consider these factors and relevant facts.
{¶ 23} Accordingly, appellant's second and third assignments of error are overruled. *6
{¶ 24} Judgment affirmed.
*1YOUNG, P.J., and POWELL, J., concur.